Map of life expectancy at birth from Global Education Project.

Thursday, May 03, 2007

The Bill of Rights is a blunt instrument

Believe me, I'm all for it. I really like that first amendment, as well as the fourth, fifth, and all the rest of them including the ones most people don't know about. *

Even the second amendment is cool with me -- and all you NRA members need to go out and join the well-regulated militia, right now. It's called your state National Guard, and they could sure use you.

But, as Miriam Shuchman tells us in NEJM on-line, the current legal regime established by the Supreme Court includes commercial speech -- advertising -- under the protection of the First Amendment. Now, I'm no constitutional law scholar -- and believe me, I've learned to make that disclaimer -- but I'm allowed to have a personal opinion about what liberty means to me. And I'm not totally happy with that. It is related to the legal fiction, also imposed upon us by the SC, that corporations are persons, so that Pfizer and Monsanto have constitutional rights. That's insanity, but it proves who really rules us.

Anyway, like it or not, Shuchman informs us that a legal ban on Direct to Consumer advertising of prescription drugs would probably be found to be unconstitutional. Note that it is perfectly constitutional, and in fact is currently enforced, in numerous countries that are not generally considered to be tyrannical, including the UK, France, Sweden, Norway, Germany, Italy, Canada, etc., but if the FDA is allowed to ban Pfizer from hawking Celebrex on your TV, the Supreme Court is convinced that we'll be one step away from a situation in which the power of the President is greater than the rule of law.

Oh, wait. But I digress.

Anyway, the Institute of Medicine thinks that advertising should be banned for the first two years after a drug is approved, to allow time for post-marketing surveillance and a clearer idea about the drug's safety. Experts think that a law giving the FDA the power to implement such bans selectively, when there is more than ordinary suspicion that a drug might be risky, could be upheld. But others think that, given the current makeup of the SC, even such a limited power would be struck down.

It seems to me that drug advertisements are clearly distinguishable from political speech or social criticism, and that tough regulations, including outright bans under some circumstances, do not jeopardize our essential liberties. On the contrary, they would expand liberty by cleansing the marketplace of ideas of propagandistic clutter that has nothing to do with political and social freedom. But what do you think?

*Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Suck on that, Commander Guy.

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